JOHNSON & JOHNSON TALCUM POWDER PRODUCTS MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION
PRESENTLY before the Court is a Motion brought by Defendants Johnson & Johnson and Red River Talc LLC (collectively, “J&J“) for the Entry of an Order to Show Cause Why All Cases in This Multidistrict Litigation (“MDL“) Should Not be Dismissed With Prejudice (the “Motion“). (Doc. No. 45314). Plaintiffs, through the Plaintiffs’ Steering Committee (the “PSC“), oppose the Motion, (Doc. No. 45576), to which J&J replied, (Doc. No. 45601). The Court has fully considered the parties’ written submissions and decides the Motion without oral argument pursuant to
The visceral reaction to J&J‘s Motion may be that it seeks instant dismissal of all cases in this MDL. The undersigned views it differently. The Motion presents an opportunity for the parties and the Court to review the status of the record to, perhaps, re-evaluate a better way to manage an aged and complex mass tort MDL, such as this
I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY
As the parties are aware, this MDL arises out of allegations that Plaintiffs’ respective use of J&J‘s talcum powder products caused them to develop ovarian cancer. In an effort to manage the MDL, and pursuant to the Court‘s Case Management Orders, the parties selected six bellwether cases to proceed to expert discovery and ultimately trial: Carter Judkins, No. 19-cv-12430; Lynda Bondurant, No. 19-cv-14366; Anna Gallardo, No. 18-cv-10840; Hilary Converse, No. 18-cv-17586; Pasqualina Rausa, No. 20-cv-2947; and Tamara Newsome, No. 18-cv-17146. (See Doc. No. 18906).
In the process of expert disclosures, Plaintiffs in the bellwether cases proffered two gynecologic oncologists as experts on the issue of specific causation: Judith Wolf, M.D., and Daniel L. Clarke-Pearson, M.D.1 On March 27, 2024, the Court found that the changes to
The Special Master thereafter held hearings on general causation and specific causation separately. On January 20, 2026, the Special Master issued a Report and Recommendation regarding the experts opining as to general causation.2 (Doc. No. 43902). On May 7 and 8, 2026, the Special Master held evidentiary hearings on the admissibility of Plaintiffs’ specific causation experts, Drs. Wolf and Clarke-Pearson.3 (See Doc. No. 45314-5, 5/7/2026 hr‘g tr.). Following the Rule 702 hearings before the Special Master, on June 8, 2026, the bellwether Plaintiffs filed a notice that they withdrew their specific causation experts without prejudice. (Doc. No. 45191). On the same day, upon review of the Notice withdrawing Drs. Wolf and Clarke-Pearson, the Court scheduled a Case Management Conference for August 3, 2026. (ECF No. 45196).
This Motion then ensued. In sum, J&J argues that the testimony of Drs. Wolf and Clarke-Pearson during the May 7, 2026 hearing before the Special Master
Third, it claims that Plaintiffs’ experts acknowledged that “the current state of science confirm that no qualified expert can reliably pinpoint the etiology of a particular woman‘s ovarian cancer.” (Doc. No. 45314-1 at pp. 22-23). Finally, J&J asserts that Drs. Wolf and Clarke-Pearson contradicted themselves during the hearings before the Special Master regarding whether a woman‘s risk factors worked synergistically or cumulatively together. (Doc. No. 45314-1 at p. 24). As such, J&J postulates that such inconsistency renders it “unfathomable that any other expert will be able to offеr reliable specific causation opinions.” (Doc. No. 45314-1 at p. 24).
The PSC further argues that J&J relies upon an unsupported standard for the admissibility of specific causation experts. It posits that, rather than needing to prove that genital use of talcum powder was the sole cause of a woman‘s ovarian cancer, a plaintiff need only prove that such use was “a substantial contributing factor.” (Doc. No. 45576 at p. 16). The PSC asserts that Drs. Wolf and Clarke-Pearson testified to a
According to the PSC, the laws of the various applicable jurisdictions do not require their experts to assign a percentage to talcum powder‘s contribution to a specific plaintiff‘s ovarian cancer. Rather, it suffices that the experts establish that talcum powder use was “a substantial factor in producing a single, indivisible injury brought about by cooperating causes[.]” (Doc. No. 45576 at p. 20). Once that showing is made, the PSC contends that the burden shifts to J&J to show the apportionment of the cоntributing causes. (Doc. No. 45576 at p. 20 (citing Scafidi v. Seiler, 119 N.J. 93, 110, 113-14 (1990)).
The PSC thus argues that Plaintiffs’ experts adequately testified “that each identified, applicable risk factor is a contributing cause[,]” consistent with the established
In reply, J&J reiterates its request for the entry of an Order to Show Cause because, it contends, the testimonies of “Drs. Wolf and Clarke-Pearson demonstrate that no MDL plaintiff can establish specific causation with admissible expert evidence under Rule 702.” (Doc. No. 45601 at pp. 5-6 (emphasis in the original)). It counters the PSC‘s argument that the entry of an Order to Show Cause would violate the due process rights of the non-bellwether Plaintiffs. J&J points out that the show-cause procedure would necessarily permit all Plaintiffs to proffer their respective positions as to specific causation. According to J&J, this MDL is at a procedural juncture in which the show-cause process would feasibly address the critical and common fundamental questions regarding Plaintiffs’ ability to show specific causation with admissible expert testimony. (See, e.g., Doc. No. 45601 at p. 9 (comparing the status of this matter with that in in re Zostavax (Zoster Vaccine Live) Prods. Liab. Litig., No. 23-1032, 2024 WL 3423709 (3d Cir. July 16, 2024), wherein the Third Circuit affirmed the MDL court‘s use of a Lone Pine order to require remaining plaintiffs to produce valid testing relating to causation)).
After the parties fully briefed the Motion, the Court directed the PSC to “(1) indicate whether the PSC intends to seek reinstatement of their specific causation experts for the bellwether cases; and (2) detail how the PSC intends to move forward with the bellwethers, which should include identification of any information relevant to showing specific causation should the PSC not intend to reinstate those expеrts.” (ECF No. 45608). On July 17, 2026, the PSC informed that the Court it “intends to seek reinstatement of their specific causation experts for the bellwether cases.” (Doc. No. 45684).
II. APPLICABLE LEGAL STANDARD
The Third Circuit grants district courts administrating MDLs broad discretion and “significant latitude to manage their dockets and to mitigate potential burdens on the defendants and court.” Hamer v. LivaNova Deutschland GmbH, 994 F.3d 173, 178 (3d Cir. 2021) (internal quotation marks and citation omitted). Case management orders, including Lone Pine orders or similar mechanisms, facilitate the goals of distinguishing
Nevertheless, the advancement of meritorious claims shall not be sacrificed for the sake of efficiency. See id. As such, courts often balance a number of factors to determine the propriety of entering a Lone Pine order or similar case management order,7
the PSC‘s opposition asserts arguments commonly raised in opposition to the entry of a Lone Pine order.
III. DISCUSSION
J&J‘s Motion and the PSC‘s withdrawal without prejudice of the bellwether Plaintiffs’ experts, and subsequent “inten[t] to seek reinstatement,” present two threshold issues: Is the request for the entry of an order to show cause premature with the status of the bellwether Plaintiffs’ experts at issue; and would the entry of such an order violate the due process rights of the non-bellwether Plaintiffs?
Through the Motion, J&J seeks to the Court to “issue an order to show cause why all claims in this MDL, including but not limited to the six Bellwether Cases, should not be dismissed with prejudice.” (Doc. No. 45314-1 at pp. 1 and 26). However, in its reply, J&J asks the Court to “enter summary judgment on the Bellwether Plaintiffs’
Moreover, although J&J contends on reply that “summary judgment” is appropriate as to the bellwether cases, that is not the motion it has brought before the Court. Nothing in J&J‘s moving papers supports a fulsome analysis under Rule 56 of the
The PSC also argues that the entry of an order to show cause of the kind J&J seeks would violate the non-bellwether Plaintiffs’ due process rights or improperly circumvent other available procedural mechanisms. (See Doc. No. 45576 at p. 8). The Court disagrees. “Due process requires notice ‘reasonably calculated, under all the circumstances, to apprise interested parties of the рendency of the action and afford them an opportunity to present their objections.‘” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). An order to show cause provides just that: notice and an
In addition, the availability of other procedural mechanisms—such as motions pursuant to Rule 702 and
Rather, whether to grant J&J‘s Motion for the entry of an order to show cause requires a thoughtful review of the stage, complexity, and distinct needs of this MDL. This MDL, presently consisting of over 69,000 claimants,9 has remained pending for over a decade. The parties have completed all factual and expert discovery for the six bellwether cases. There is nothing nascent about this litigation. Nor has there been a
The Motion thus raises a two-fold inquiry: (1) does the current record and posture support an uncertainty common to all Plaintiffs as to whether any individual Plaintiff can proffer reliable expert opinions, admissible under Rule 702, to meet her burden on specific causation; and (2) is that common uncertainty significant enough to warrant a particular case management approach that requires Plaintiffs to dispel the doubt? See, e.g., Russell, 305 F.R.D. at 84 (“‘A Lone Pine order should issue only in an exceptional case and after the defendant has made a showing of significant evidence calling into question the plaintiffs’ ability to bring forward necessary medical causation and other scientific information.‘” (quoting McManaway v. KBR, Inc., 265 F.R.D. 384, 389 (S.D. Ind. 2009))). The Court finds the answer to both questions to be in the affirmative.
A. UNCERTAINTY REGARDING ADMISSIBILITY OF EXPERT OPINION ON SPECIFIC CAUSATION
The parties do not dispute that the Court would apply the choice of law rules of the relevant transferor courts, such that various state laws would dictate the appropriate
J&J points to a number of issues that lead to grave doubt that any given Plaintiff in this MDL would ever be able to proffer such admissible evidence. For example, Dr. Wolf testified that, although purportedly applying differential etiology, she was unaware of any way to rule in or rule out any particular risk factor in a given claimant. (See, e.g., Doc. No. 45314-5, 5/7/2026 hr‘g tr., at 136:2-14 (Dr. Wolf testifying, subject to counsel‘s objections, that she did not “know of any way that [she] could rule in or rule out any particular risk factors“)). In contrast, Dr. Clarke-Pеarson testified that he both ruled in and ruled out known risk factors as to three of the bellwether Plaintiffs. Yet, Dr. Clarke-Pearson acknowledged that he could not rule out unknown or idiopathic causes leading to a particular woman‘s ovarian cancer.
Similarly, in the context of New Jersey state law, the Supreme Court of New Jersey has found proper application of a differential diagnosis to be a two-step process: first, the expert rules in all plausible causes; second, “the expert then must rule out those causes that did not produce the patient‘s condition by engaging in a process of elimination, eliminating hypotheses on the basis of a continuing examination of the evidence so as to reach a conclusion as to the most likely cause of the findings in that particular case.” Creanga v. Jardal, 185 N.J. 345, 356 (2005) (internal citation and quotation marks omitted). Recently, the Supreme Court of New Jersey held that a trial court must apply the gatekeeping standards for admissibility of expert testimony to both steps of the differential diagnosis methodology: “the ‘rule in’ of ‘all plausible causes,’ and the ‘process of elimination’ to ‘rule out’ plausible causes and identify ‘the most likely cause of the findings in that particular case’ . . . .” Beavan v. Allergan U.S.A., Inc., 264 N.J. 99, 132 (2026) (quoting Creanga, 185 N.J. at 356, 358). It further instructed that, when considering the “rule out” stage, a “trial court should scrutinize the methodology used by the expert to eliminate causes previously ruled in, and the methodology used in the expert‘s determination not to rule out a given cause.” Id. at 133.
The current record reflects that Dr. Wolf did not perform at all the second step of a diffеrential etiology and Dr. Clarke-Pearson could not justify his determinations as
In addition, J&J points out that the experts equivocated as to whether the relevant risk factors, inсluding the genital use of talcum powder, acted “cumulatively, additively, and/or synergistically.” Although originally characterizing the effect as synergistic, Drs. Wolf and Clarke-Pearson appear to have subsequently retreated from such characterization upon additional questioning at the May 7, 2026 hearing.
The PSC points out that Dr. Wolf testified consistently with her expert report by opining that the risk factors for ovarian cancer “act in a cumulative, additive and/or synergistic fashion.” (Doc. No. 45576 at p. 24). Indeed, at the hearing, Dr. Wolf testified that the risk factors “cannot only work and interact with each other, they can act independently and they can аct in a cumulative, added or synergistic fashion[.]” (Doc. No. 45314-5, 5/7/2026 hr‘g tr., at 113:12-17). To support her opinion, Dr. Wolf
However, the differences between the three types of effects are with distinction:
When the effect of multiple agents is that which would be predicted by the sum of the effects of individual agents, it is called an additive effect; when it is greater than this sum, it is known as a synergistic effect; when one agent causes a decrease in the effect produced by another, the result is termed antagonism; and when an agent that by itself produces no effect leads to an enhancement of the effect of another agent, the response is termed potentiation.
REF. MANUAL ON SCIENTIFIC EVID., VOL. II, at pp. 1088-89. The type of effect goes to the ability to reliably “rule out” other known risk factors in employing the differential etiology methodology to opine that one factor is “substantially contributing” to the disease. See, e.g., REF. MANUAL ON SCIENTIFIC EVID., VOL. II, at pp. 996-97 (“Employing a risk estimate to determine the probability of causation is not valid if the agent interacts with another cause in a way that increases disease beyond merely the sum of the increased incidence due to each agent separately.“). The Reference Manual on Scientific Evidence points out:
In coming to an expert opinion as to whether the exposure to a known cause of a disease is likely to be responsible for the case observed in the plaintiff, the expert must consider other potential causes of the same disease. Some may be due to other known causal factors . . . . In addition, with rare exceptions, almost all diseases have some anticipated background causes that appear related to human biology . . . . An additional challenge comes in unraveling the contribution of a specific substance when exposure may have been to multiple agents. There are numerous examples where the effect of two combined exposures to two substances both known to cause the same disease is greater than the sum of the individual effects (synergism). . . . Not surprisingly, cаncer has received the most attention in research aimed at disentangling external and internal causes.
REF. MANUAL ON SCIENTIFIC EVID., VOL. II, at pp. 1081-82. With those considerations, can an expert reliably apply a differential etiology (or differential diagnosis) methodology if that expert does not, and cannot, consider the type of effect multiple risk factors may have on a given disease?
Moreover, even if the differences were not so significant, Drs. Wolf and Clarke-Pearson did not adequately explain or clarify which effect (cumulative, additive, or synergistic) they applied when considering the various specific risk factors for the bellwethеr Plaintiffs. Their respective oscillating testimony could reflect their personal inability to conduct a fulsome and reliable evaluation of specific causation. It, however, may also reflect a broader inability for any expert to apply a scientifically reliable methodology to determine if and when talcum powder is a substantial contributing factor to a woman‘s ovarian cancer.
B. THE APPROPRIATE MECHANISM TO ADDRESS THE UNCERTAINTY
Where, as here, there is concerning doubt in a plaintiff‘s “ability to bring forward necessary medical causation[,]” the Court exercises wide discretion to determine the proper mechanism to address such doubt. Russell, 305 F.R.D. at 84. In evaluating the procedural mechanism that best suits the needs of a complex mass tort MDL, such as this one, the Court balances the unquestionable rights of each Plaintiff and Defendant to have an opportunity to be heard on the merits with the hopeful goal of being just yet efficient.
It is true that each of the over 69,000 Plaintiffs here could attempt to dispel the evidentiary concerns surrounding specific causation through Rule 702 and/or summary judgment motions. Yet, having extensive motion practice in each member case is neither practical nor efficient. And, even if the Court were to select certain cases, but not all, to move forward on such motion practice (as it attempted to do with the current bellwethers), what fairness is provided to the other tens of thousands of claimants who have already waited years for the opportunity for their case to be heard?
On this record, there is a common concern for all Plaintiffs: Cаn they each establish through admissible evidence, based on the available scientific support, that
With those considerations in mind, thе Court finds that proceeding to a show cause process on the issue of specific causation is an equitable and effective method in these circumstances. Through the order to show cause process, all Plaintiffs, including the bellwether Plaintiffs, as well as Defendants, will have an opportunity to be heard. The Court will then be able to determine which claims are, or are not, meritorious. In addition, such a process would facilitate the Court‘s evaluation of appropriate next procedural steps necessarily bespoke to this MDL.
IV. CONCLUSION
Accordingly, for the foregoing reasons, and good cause shown, the Court grants J&J‘s Motiоn for the entry of an order to show cause. A separate Order will follow.
RUKHSANAH L. SINGH
United States Magistrate Judge